Terms and Conditions
- Definitions. The capitalized terms as used within this Agreement will have the meaning ascribed below:
a. “Code” means computer-programming Unless specifically stated otherwise, Code includes Object Code and Source Code.
- “Object Code” means the Code that results when Saource Code is processed by a software compiler.
- “Source Code” means the human-readable form of the Code and related system documentation, including all comments and any procedural
b. “Derivative Work” means a work based upon the Software, such as a revision, enhancement, modification, translation, abridgment, condensation, expansion, or any other form in which the Software may be recast, transformed, or adapted, and which, if prepared without authorization of OmniPayments, would constitute copyright infringement under United States law.
c. “Software” means OmniPayments as released to its customers as of the Effective Date, together with documentation, other written materials or tangible media, including machine-readable media with Code or documentation recorded thereon, or any combination of the foregoing provided to <Customer Name> via the executed Software Transmittal.
d. “Subsidiary” means a corporation, company or other entity more than 50% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or which does not have outstanding shares or securities, as may be the case, in a partnership, joint venture or unincorporated association, but more than 50% of whose ownership interest representing the right to make the decisions for such corporation, company or other entity is, now or hereafter, owned or controlled, directly or indirectly, by a party hereto. However, such corporation, company or other entity will be deemed to be a Subsidiary only so long as such ownership or control.
e. “CPU” or “Processor” means a logical processor that the operating system of the HP NonStop server views as a processor; for example, The NonStop Blade Systems utilize a multicore processor in which multiple IPUs (independent processing units) with their associated memory and hardware form the “Processor.
2. OmniPayments’s Obligations
a. OmniPayments will provide the Software to <Customer Name> for the sole purpose as defined in Section 5.
b. OmniPayments will bear all expenses related to the shipping of the Software to <Customer Name> .
3. <Customer Name>’s Obligations
a. <Customer Name> will use the Software and License for the sole purpose as defined in Section 5.
b. The Software is subject to the confidentiality obligations set forth in Section 7 of this In addition, <Customer Name> agrees to:
- include in all copies of the Software any existing copyright, trademark, and other proprietary rights notices; and
- do nothing which would interfere with OmniPayments’s title to or proprietary rights in the Software
c. <Customer Name> will :
- ensure that all third parties who have access to the Software are bound by appropriate undertakings preventing such third parties, to the maximum extent permitted by applicable law, from carrying out any act of reverse engineering or decompilation in relation to the Software; and
- take all measures necessary to ensure that the Source Code of the Software remains confidentia
4. Rights, Title and Licenses
a. OmniPayments owns and will continue to own all rights, title and interest in and to the Software, whether in machine-readable or printed form and including any translations and compilations thereof, and all intellectual property rights <Customer Name> understands and acknowledges that the Software contains valuable confidential information of OmniPayments.
b. OmniPayments grants <Customer Name> a non-exclusive, non-transferable Software license, to install and use the Software on a HP NonStop server, solely for the purpose defined below
<Customer Name>’s EFT Solution
c. The license is per cpu and each cpu on the system needs to be An upgrade license is required when the hardware is changed.
d. Annual support must be contracted for the duration of the term.
e. Subject to the limitations of Section 5.b. and OmniPayments’s ownership of the Software and the intellectual property rights in the Software, PMP will own all Derivative Works prepared by PMP after the Effective Date.
f. The License is sold for the price quoted in the attached Quote and corresponding PMP Purchase Order.
5. Requirements Regarding Agreements With Employees and Subcontractors
PMP agrees that it will have and maintain, for so long as this Agreement is in effect, written agreements with all employees, subcontractors or agents engaged by PMP who assist with or contribute to PMP ’s duties, obligations or performance under this Agreement. The written agreements will contain confidentiality provisions no less restrictive than those set forth in Section 7 of this Agreement and sufficient to establish the rights and benefits contemplated by, and to assure compliance with, this Agreement.
6. Requirements Regarding Agreements With Employees and Subcontractors
a. PMP understand and acknowledges that OmniPayments will disclose certain information that OmniPayments considers to be confidential (collectively, “Confidential Information“). OmniPayments will retain sole and exclusive ownership, right, title and interest in and to all of its Confidential Information.
b. Confidential Information includes, but is not limited to, the Software, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, computer programs, business operations, customer lists, and other technical, financial, and business information. The confidentiality obligations set forth in this Section 7 will not apply to information which PMP can prove: (i) is known by PMP at the time of disclosure; (ii) is free of any obligation to keep it confidential, as evidenced by written records; (iii) is or becomes generally publicly known through authorized disclosure; (iv) is independently developed by PMP without the use of any of OmniPayments’s Confidential Information as evidenced by written records; or (v) PMP rightfully obtains from a third party who has the right to transfer or disclose.
c. Confidential Information entitled to protection under this Agreement must be marked as “Confidential” at the time of disclosure, or identified as confidential at the time of disclosure. Notwithstanding the foregoing, the Software, whether marked or not, will be considered Confidential Information.
d. PMP acknowledges that OmniPayments’s Confidential Information is a valuable and unique asset. PMP agrees, for itself and on behalf of its officers, directors, agents, and employees, to the following:
- PMP shall not disclose the Confidential Information to any third party or disclose to an employee unless that third party is an agent or contractor under obligation of non-disclosure similar to this Agreement and unless that third-party or employee has a need to know the Confidential Information for the performance of PMP ’s obligations under this Agreement. PMP will use the Confidential Information only for the purpose of exercising its rights or fulfilling its obligations under this Agreement. In no event will PMP use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own information of like importance;
- If PMP faces legal action or is subject to legal proceedings requiring disclosure of Confidential Information, then, prior to disclosing any Confidential Information, PMP will promptly notify OmniPayments and will seek appropriate protection from disclosure.
e. All Confidential Information, including all documents and other tangible embodiments whatsoever based on or which includes Confidential Information, will remain OmniPayments’s property and will be returned to OmniPayments or destroyed or purged promptly at OmniPayments’s Upon request, an authorized officer of PMP will certify all destruction under this Section 7.e. in writing to OmniPayments.
f. PMP acknowledge that (1) in the event of a violation of the restrictions contained in this Section 7, remedies at law will be inadequate and that violation will cause irreparable damages to disclose it. OmniPayments within a short period of time, and (2) OmniPayments will be entitled to seek injunctive relief against each and every violation.
g. During the performance of this Agreement, PMP may also come into possession of or have access to Confidential Information belonging to the OmniPayments Customers (“OmniPayments Customer’s Confidential Information”). If PMP has executed a separate confidentiality or non-disclosure agreement with respect to any given OmniPayments Customer’s Confidential Information, then that separate agreement will control and apply with respect thereto. If PMP has not executed such a separate agreement, then this Section 7 will apply to such OmniPayments Customer’s Confidential Information as if that Confidential Information belonged to OmniPayments.
h. PMP will not disclose any terms or conditions of this Agreement to any third party, except financial and legal advisors under obligation of non-disclosure similar to those contained in this Agreement, without the prior consent of Notwithstanding the foregoing, the existence of this Agreement is not confidential information.
7. Representations and Warranties
a. Both parties represent and warrant that they have full authority to enter into this Agreement.
b. THE SOFTWARE IS PROVIDED TO PMP “AS IS” AND “WHERE IS” WITHOUT ANY WARRANTY THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SOFTWARE RESIDES WITH PMP. EXCEPT IN THE CASE OF (i) A BREACH OF CONFIDENTIALITY UNDER SECTION 7, (ii) LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, OR (iii) INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS OUTSIDE OF THE SCOPE OF THE LICENSES GRANTED IN SECTION 5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, OR FOR LOSS OF PROFITS, LOSS OF DATA OR ANY OTHER ECONOMIC LOSS, HOWEVER IT ARISES AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER THE PARTY HAS ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
c. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
8. Indemnification
a. PMP agrees to indemnify, defend, and hold harmless, OmniPayments, its Subsidiaries, successors, officers, suppliers, directors and employees, from and against any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages, including reasonable attorneys’ fees, arising out of or in connection with PMP ’s delivery of Software, Derivative Works and support.
b. OmniPayments agrees to defend or settle any claim against PMP alleging that the Software, only as originally provided to PMP under this Agreement, infringes a United States copyright owned by a third party, if PMP :(i) promptly notifies OmniPayments of the claim in writing; (ii) cooperates with OmniPayments in the defense of the claim; and (iii) grants OmniPayments sole control of the defense or settlement of the claim. OmniPayments will pay infringement claim defense costs, OmniPayments–negotiated settlement amounts, and court-awarded damages. If such a claim appears likely, then OmniPayments may modify the Software, procure any necessary license, or replace the affected item with one that is at least functionally equivalent. If OmniPayments determines that none of these alternatives is reasonably available, then the license in relation to the Software (or the relevant portion thereof) will terminate. This sub-section 9.b states OmniPayments’s entire liability for claims of intellectual property infringement.
9. Term and Termination
a. The term of this Agreement is perpetual unless otherwise revoked or terminated as provided herein.
b. OmniPayments may terminate this Agreement upon 30 days’ written notice to PMP if PMP materially fails to perform or to comply with any material provision of this Agreement and such failure or non-compliance has not been cured within such 30-day period.
c. In the event of termination of this Agreement, those Sections which by their nature are intended by the parties to survive will survive and continue in effect to the extent necessary to protect the rights of the parties.
10. General
a. Independent Contractor. Each party is and will remain an independent contractor with respect to all performance rendered pursuant to this Agreement. Neither party nor any employee thereof will be considered an employee or agent of the other party for any purpose and will have no authority to bind or make commitments on behalf of such other party for any purpose and will not hold itself or themselves out as having such authority.
b. Export of Software or Technical Data. PMP will not, nor will PMP authorize or permit its employees, agents or subcontractors to, export, reexport, or electronically transfer the Software, any technical information, or any process, product or service that is produced under this Agreement to any prohibited end user/user or to any country specified as a prohibited destination as set forth in applicable national, state and local laws, regulations and ordinances, including the Regulations of the U.S. Department of Commerce and/or the U.S. State Department, without first obtaining government approval.
c. Assignment. PMP will not sell, transfer, assign, or subcontract this Agreement or any right or obligation set forth herein, except as expressly provided herein, without the prior written consent of OmniPayments, which consent will not be unreasonably Any act in derogation of the foregoing will be null and void.
d. Governing Law and Venue. This Agreement shall be solely and exclusively governed, construed and enforced in accordance with the laws of Santa Clara, California, without reference to conflicts of law principles. Any suit, action or proceeding arising from or relating to this Agreement must be brought solely and exclusively in the state courts of Santa Clara, California, and each party hereby irrevocably consents to the jurisdiction and venue of such courts in any such suit, action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.
f. Entire Agreement and Amendment. This Agreement (together with all attached Exhibits) completely and exclusively states the agreement of the parties regarding the subject matter This Agreement supersedes, and its terms govern, all other prior or contemporaneous understandings, agreements, representations, term sheets, letters of intent, memoranda of understanding, summaries, presentations, proposals or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be modified or amended only by a written amendment signed by authorized representatives of both parties, specifically identifying the Sections or Exhibits hereof to be modified or amended and the effective date of the changes.
g. Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, all of which taken together constitute one single agreement between the parties, and each of which will be deemed an original. An electronic transmission of this Agreement by a party containing a signature page that has been executed on behalf of that party constitutes a valid signature of that
